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ELRCDismissedNot stated in judgment (Applicant's Notice of Motion dated 3rd May 2018 in a pending appeal; a related Appeal 3/2017 is referenced)· [2019] KEELRC 1437 (KLR)

Laban Mokua & 8 others v Registrar Of Trade Unions & another [2019] KEELRC 1437 (KLR)

Employment and Labour Relations Court
31 May 2019
MOMaureen Onyango
1,937 words in judgment
View original judgmentRead on Kenya Law Watch case
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·~8 min to read original · ~4 min brief

The bottom line

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A Kenyan court refused to stop the union from recovering taxed costs against one of nine jointly liable appellants, ruling the execution process was regular.

What this practically means

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Executive summary

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The 3rd Appellant, Samson Omechi, moved the Employment and Labour Relations Court at Nairobi by Notice of Motion dated 3rd May 2018 seeking to stay and set aside a Notice to Show Cause dated 29th March 2018, an Application for Execution of Decree dated 26th January 2018 taken out by the 2nd Respondent union, and the proceedings before the Deputy Registrar's chambers. A temporary stay had been granted on 17th May 2018. The applicant complained that his replying affidavit opposing the two processes was disregarded before the Deputy Registrar, that he was targeted alone among nine appellants against whom costs following a judgment of Nzioki Wa Makau J of 9th July 2014 had been taxed at Kshs.287,694.00, that service of the notice came some four years after earlier service through advocates, and that his rights under Articles 47 and 50, among others, would be violated. He relied on authorities on dismissal for want of prosecution and selective execution. The respondent, through its advocate Alfred Nyabena, countered that the applicant had authority to represent the co-appellants, that no objection or reference against taxation was filed, that there is no time limitation on recovering taxed costs, and that the application was brought late and merely to delay. The court held that the applicant did not understand execution procedure, that the certificate of costs and notice to show cause were regular, that the question of his being singled out was explained by the respondent's representation of his co-appellants, and that no violation of constitutional rights was demonstrated. The application was dismissed on 31st May 2019, with no express order as to costs.

Key legal issues

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01

Whether the application for execution of decree and notice to show cause should be stayed and set aside for want of prosecution, delay and alleged targeting of the applicant alone

Holding

The application was dismissed; no want of prosecution or irregularity in the execution process was established.

Reasoning

The court found that the applicant misunderstood execution procedure. The certificate of costs and the notice to show cause were regular, and the only plausible concern - why the applicant alone was signed out for execution despite the judgment being against nine appellants - was explained by the respondent, whose advocate swore he had authority to represent the co-appellants. The applicant also failed to show any violation of his constitutional rights.

p. 3
02

Whether the applicant's constitutional rights (Articles 22, 25, 27, 28, 29, 35, 36, 39, 47, 48, 50 and 159) would be violated by execution

Holding

No violation demonstrated.

Reasoning

The applicant alleged discriminatory and malicious targeting among nine appellants jointly liable for costs, invoking multiple constitutional articles, but the court held he did not demonstrate how execution of the decree would breach those rights. The respondent explained that the applicant had sworn an affidavit giving him authority to represent the other appellants, justifying his being pursued alone.

p. 3

Legal principles established

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  • Where the certificate of costs and the notice to show cause are regular, the only question is why the particular judgment debtor was signed out for execution, and that question is answered where the executing party represents the co-appellants.

Court orders

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  1. 1.The Notice of Motion dated 3rd May 2018 seeking to stay and set aside the Notice to Show Cause dated 29th March 2018 and the Application for Execution of Decree dated 26th January 2018 was dismissed

Authorities

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Legislation

  • Constitution of Kenya, 2010Articles 47, 50, 22(1), 25(a) and (c), 27(1), (2), (4) and (5), 28, 29, 35, 36, 39, 159
  • Labour Relations ActSection 2
  • Civil Procedure RulesOrder 1 Rule 10; Order 17 Rule 2(3)

Cases cited (4)

  • Nilesh Premchand Mulji Shah & Another t/a Ketan Emporium v M.D. Popat & Others and Another
    [2016] eKLR
  • Ivita v Kyumba
    [1984] KLR 441
  • Sam Nyamweya & 3 others v Kenya Premier League Ltd & 2 others
    [2015] eKLR
  • Lord Johnson v Grant
    1923 SC 789 at 790
Jurisdiction invoked
Inherent jurisdiction of the Employment and Labour Relations Court over applications within a pending appeal before it (no specific provision invoked; Articles 47, 50 and 159 of the Constitution referenced)

Key timeline

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Practical implications

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Frequently asked questions

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Later judgments citing this (1)

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Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.

Cite this brief

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Cite this brief

Caselaw, "Laban Mokua & 8 others v Registrar Of Trade Unions & another [2019] KEELRC 1437 (KLR)", Case Analysis (2019). Not stated in judgment (Applicant's Notice of Motion dated 3rd May 2018 in a pending appeal; a related Appeal 3/2017 is referenced). Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2019/1437/eng@2019-05-31

Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.